Footnotes

• A surprising judgment was handed down by a German Court, ruling that a rare poster collection stolen by the Nazi Gestapo, although legally owned by the Jewish heir of the original owner Hans Sachs, could remain in a museum because the heir has no legal remedy to possess the collection.
• Suzanne Glass, the great granddaughter of Hans Sachs, has written a more intimate take on the story behind the aforementioned rare poster collection.
• The First Circuit Court of Appeals hands down major victory for artists and rules in favor of Christoph Buchel, holding Mass MoCA to be in violation of Buchel's right to artistic integtrity.
• Beginning in 1473 with the earliest documented instance of art theft, numerous works of art have been stolen by a variety of criminals, but the multiple thefts of Munch's The Scream trumps them all.
• Following an international precedent of returning looted cultural heritage, the Bolivian government will return four colonial oil paintings to Argentina after they were stolen two years ago.
  
• Is archaeological discovery a good thing when it leads to destruction? The reactivation of interest in archaeology from new discoveries and subsequent television programs about antiquities could be cause of recent tomb looting in China.
• A panel discussion titled Collectors, Dealers, Museums & the Law, with the purpose of increasing awareness of cultural property laws as well as the legal responsibilities of collectors, dealers, and museums, will take place February 11th, at noon Pacific, in San Rafael, California.
• Perhaps the only way to decrease the illicit removal of cultural objects in India is if protective measures are professionalized and creative partnerships developed with local communities.
• Although speculation as to the authenticity of the Archaic Mark (Gospel of Mark) codex has been rife for more than 60 years, US scholars and scientists have proven that one of the jewels of the University of Chicago’s manuscript collection is a skilled late 19th- or early 20th-century forgery.
• New Trend Alert: Museums and Gallery's exhibiting forgeries, the artists who create these fakes, and skilled tactics used to detect forged art, like the two week exhibition at London’s Victoria & Albert Museum.
• 2009 proved to be a horrendous year for the Museum world, but 2010 brings a mood of cautious optimism.
• David Gill discusses the issue of the looting on archaeological sites to provide material for the market and to fund organized crime, and Christina Ruiz discusses funding terrorism, specifically 9/11 hijacker Mohamed Atta's attempted sale of Afghan loot to a German archaeologist.
• A Defense attorney in the four-corners antiquities investigation is raising questions about the unnamed informant.  The sources was integral to the Government's 2½-year multistate investigation into illegal artifact trafficking of objects from Pueblan civilizations.

Footnotes, Jan. 28

• Mark Durney notes how much more attention we pay to damaged masterworks than to outright art theft. 
• artnet weighs the cultural destruction in Haiti.
• Just how much does Zahi Hawass focus on pulling in revenue?
• Donn Zaretsky and Michael Rushton have had an all-too-rare intelligent discussion on the deaccession of art. 
• Tourists were stranded after mudslides near Machu Picchu.
• More discussion of fake antiquities at Safecorner. 
  

Barford on the Sale of Egyptian Antiquities

Archaeologist Paul Barford has an interesting post on the sale of antiquities in Egypt.  He's had a number of interesting posts on his time on an excavation there, but I was really interested in his post Monday.  He talks about his quest for some fake antiquities, and was offered some shabtis.  These small funerary figurines were placed in graves, perhaps as servants meant to serve the deceased in the afterlife.  Pictured here are shabtis on display in the Louvre.  Barford states the "current modes of no-questions asked collecting are directly contributing to the creation of the market which is the motor behind the looting of archaeological sites for saleable objects."  I think I agree with him that buyers are fueling the looting of sites.  But there are other contributing causes:  the paucity of resources in these areas for law enforcement; the desire by visitors and tourists to buy these objects; and the lack of site security when archaeologists leave.  The answer is responsible scrutiny of these transactions, but also the importance of outreach and education of these buyers and the local communities about the value of responsible stewardship of these sites and objects.       

Barford writes:

Last night in a Luxor sidestreet on my quest for the best or the most bizarre fake artefacts, in a grubby shop I'd overlooked before, I was offered several shabtis and shabti fragments which I am pretty sure were not fakes. All the dealer offered as provenance was "here and there". After I had correctly identified the fakes he'd mixed in to test whether his customer knew his onions, he showed me a lot more. I told him that in his country there was a new law under discussion which would make merely having them in his shop punishable by up to twenty five years. I was not terribly surprised that he would not show me the "authentic scarabs" after that. Those suppliers "here and there" who sold them to him knew that these items were saleable to visiting foreigners.

The day before, I was walking across the palace site at Malkata, showing it to some colleagues, and had just replaced the cardboard "protecting" the wall paintings when a guy in a dark robe came running up. "Closed, closed, zis site he closed" he panted. He was presumably the "gafir" who was guarding this site for the SCA. Once he realised he could not make cash out of showing us the wall paintings which I'd just shown people, he then pulled out of his pocket a blue-painted sherd, the "Armarna ware" which I have seen on the Internet being sold at 300 dollars a piece and asked whether I would like to "see" it. It looked remarkably like the one I'd found there a few weeks earlier and put under a nearby bush to protect it from the sun and weather. I told him where he could put it. Interestingly this was after I had pulled out the photo-identity document issued by the SCA authorising me as an archaeologist to visit sites like this.

 . . .

What is interesing about this is Malkata is littered with pottery, tonnes of it. Most of it from the Eighteenth dynasty, including some nice red wares (lovely colours), slipped ware, fine bowls, burnished ware. Yet neither of the would-be vandors had picked any of this up, they knew their market, the blue-painted pottery is coveted by western collectors and that is what they were stealing from the site to make a bit of cash. . . . 

I've had similar experiences at ancient sites as I'm sure many of you have.  Pictured here is a man selling small stone 'zapotec' figurines at Monte Alban in Oaxaca Mexico this summer.  I don't have the expertise required to tell if these are fakes or not.  I've always assumed, as Barford did, that these locals are selling fakes.  

Seminar Paper: William M. V. Kingsland and the Importance of Provenance

I'm publishing here a series of papers written by law students in my 'Property, Heritage and the Arts' seminar from the Fall of 2009. This paper was written by Michael Poché

William M. V. Kingsland and the  Importance of Provenance

1. Introduction

Nature, left undisturbed, so fashions her territory as to give it almost unchanging permanence of form, outline, and proportion, except when shattered by geologic convulsions. . . . In countries untrodden by man, the proportions and relative positions of land and water. . . are subject to change only from geological influences so slow in their operation that the geographical conditions may be regarded as constant and immutable. Man has too long forgotten that the earth was given to him for usufruct alone, not for consumption, still less for profligate waste. . . But she has left it within the power of man irreparably to derange the combinations of inorganic matter and of organic life. . . man is everywhere a disturbing agent. Wherever he plants his foot, the harmonies of nature are turned to discords. . . [O]f all organic beings, man alone is to be regarded as essentially a destructive power….

George Perkins Marsh, The Earth as Modified by Human Action: Man and Nature [fn1]


When George Perkins Marsh first penned those words in 1874, he was speaking in his role as one of America’s first important environmentalists. Contrary to the prevailing notions of his contemporaries, Marsh felt that, rather than being owners of the earth – as in the traditional Abrahamic concept of property – we are in fact only stewards of the earth, here for a short time only, and that instead of practicing some supposed birthright over the land, we were instead bound by a birth “duty”, so to speak, to protect it.
Though his expertise was in the environment (as well as diplomacy and philology), Marsh may as well have been speaking about the art world; the philosophy of guardianship he espoused towards the Earth would serve us well as a basic model for how humankind should safeguard its cultural riches. One of the few things which can be said with some certainty about art is that nearly every culture throughout human history has spent time creating works which are largely decorative in nature; the big question is, “Why?” While we still do not possess an all-encompassing answer to that question, the question itself is strongly suggestive that the creative act, in its myriad forms, is some form primal human strategy, on par with survival, sustenance, procreation, etc.

It is here that the comparison to Marsh’s quotation becomes problematic; Marsh saw man as “. . . essentially a destructive power.”[fn2] This is true, but he is also the only consciously creative power as well. Because of this dual nature, it is important to ensure that our destructive tendencies do not overshadow our creative ones. Now, clearly, not every person has a creative (or rather, artistic) bent. For some of those who do not, art may be nothing more than a blank slate; some may be appreciators, either highly opinionated or more catholic in taste; but some have an almost hostile stance towards art, which could manifest itself in numerous ways.
Much environmental advocacy is practiced from a state of naiveté and pessimism; that is, we don’t know what the long range effects of our actions will be – and we are assuming that our actions and their effects will be negative – so a prudent course would be to treat our environment as cautiously as possible. And so it should be with our cultural heritage: because we don’t fully understand why people have always made art, it would behoove us to assume that the fact of its universality indicates its importance to our existence. As we are only stewards of this Earth, so too are we stewards of our cultural legacy.

One of the primary tools we have at our disposal to this end is that of provenance. Provenance acts as a sort of cultural lineage, or a chain of succession. It ensures the integrity and value of art, as well as provides a guidepost of authenticity. It is especially important when purchasing art; potential buyers need to be made aware of a piece’s particular history, and failure to be able to do so should be a big red flag to purchasers, be they newbies or long time connoisseurs.

So, what to say of someone who, despite an obvious love for art, so eradicates the provenance of, not one or a few, but of close to three hundred valuable pieces[fn3] that they end up languishing in the hands of the F.B.I., awaiting either return to their rightful owners or an uncertain fate on the auction block, where disinterested relations of the previous “owner” hope they will eventually end up?

Continue

Cyprus Antiquities Smugglers Discovered

Police in Cyprus have detained ten people over the weekend and are looking for five more after the discovery of an international antiquities-smuggling ring believed to be the largest such discovery in Cyprus's history.  The objects seized may be worth more than 11m euros, and include pottery, coins, figurines, some of which may be 4,000 years old.  Many of the objects may have originated elsewhere, and authorities now are attempting to determine the origins of many of the objects.  The BBC points out that Cyprus was an important crossroads in the ancient Mediterranean, with armies and merchants from Egypt, the Roman Empire, Persia, and others.  This may make it difficult to trace the origin of these objects, many of which could plausibly have originated from dozens of modern-day nations.  The smugglers of course were likely to have disguised or destroyed any evidence of the history of these objects. 

1. Cyprus smuggling ring broken up, BBC, January 25, 2010.

Antiquities Speakers at George Washington

Via David Gill I see that George Washington University is bringing in speakers to discuss antiquities issues.  The series is entitled"Museums and Antiquities".  Tonight will be James Cuno, sure to offer some provoking opinions:   James Cuno: “Museums, Antiquities, and the Politics of Cultural Property".  If any readers end up attending, please drop me a line with any observations.  


Coming up will be:

• February 18, 2010. Patty Gerstenblith: "Museums and the Market: Preserving the Past by Regulating the Market in Antiquities”
• March 4, 2010. Malcolm Bell: "Archaeologists’ Views on Collecting Antiquities"

(via)

9th Circuit Denies Limitations Appeal by Marei Von Saher

The 9th Circuit Court of Appeals has ruled on a claim over these two 500 year-old works by Lucas Cranach the Elder, Adam and Eve.  As I wrote back in 2008, this case presents some interesting issues of timeliness.  It grapples with the question of whether states may enact more beneficial limitations restrictions, allowing certain claimants to bring actions.  The claimant, Marei Von Saher is the successor in interest to Jacques Goudstikker who bought the works in a 1931 auction in Berlin. The works remained there in Amsterdam until 1940 when the Nazis instituted a forced sale.

After the war, Desiree Goudstikker reached a settlement with the Dutch government. She received some of her husband's inventory, but did not claim another set of works because that would have meant returning the purchase price received from the Germans.

The Dutch government transferred these Cranachs to George Stroganoff-Scherbatoff, the descendant of a noble Russian family who was thought to have lost the paintings to the Bolsheviks during the Russian Revolution.  Stroganoff-Scherbatoff sold these works to the Norton Simon Museum in 1971.  The 9th Circuit held first that California's special limitations rule for works looted during the Holocauset era, Sec. 354.3 conflicts with the foreign affairs doctrine.  Though it does not conflict with Executive Branch policy via the President, it does conflict with a power reserved to the Federal government, as California created a "world-wide forum for the resolution of Holocaust restitution claims". 

As a consequence, the claim was left to general limitations principles.  In California the Discovery Rule applies.  A claimant must bring her action within three years of discovering her claim.  This means actual discovery, but also when a reasonably prudent claimant should have discovered she had a claim.  Given that the museum acquired the work in 1971, this will surely make victory a difficult proposition. 

1. Von Saher v. Norton Simon Museum of Art at Pasadena, --- F. 3d ---, 2010 WL 114959 (9th Cir. 2010). 
2. Mike Boehm, Woman seeking return of looted art from Norton Simon Museum loses appeal - latimes.com, L.A. Times, January 16, 2010.
3. Orkin v. Taylor
   

Are the Black Hills Cultural Property?

That was the provocative question posed by Melissa Tatum at the AALS Annual Meeting here in New Orleans last weekend. First, a little background.  The Black Hills are a beautiful but small mountain range extending from South Dakota into Wyoming.  Today the region is home to Mount Rushmore, numerous National monuments, the in-progress Crazy Horse Memorial, and the Sturgis Motorcycle Rally.  But of course before 19th century Americans moved to the area, it was the home of indigenous groups; first the Cheyenne, and later the Lakota.

Apologies for any mistakes in this history, but as I understand it in 1868, the United States signed the Treaty of Fort Laramie, which essentially gave the Lakota nation ownership of the Black Hills.  This treaty was signed after the Lakota defeated U.S. forces.  Soon after though this treaty was violated until it was eventually revoked.  Tatum noted that the city of Deadwood was founded at this time, and references the recent HBO show.  "Deadwood" was set in the 1870's, and was based on the real life people and events of the town's early history.  The town began as a mining camp, in an area outside of the law.  The very founding of the camp was illegal, as the land was owned by the Lakota people.  The show examines this lawlessness in a number of ways.  In the real Deadwood, it was the discovery of gold which brought miners to the area.  This led to armed conflict (including Custer's defeat) which culminated in 1877 when the Federal governemnt seized control of the Black Hills for good.  

In 1980, the Sioux nation won a hard fought court victory.  United States v. Sioux Nation of Indians, 448 U.S. 371 (1980).  The Supreme Court upheld an award for the value of the land in 1877, along with 103 years of interest.  However the Sioux have refused to accept this sum, and instead want the return of the land. 

Against this background, Tatum asked whether existing Cultural Property law might provide a remedy allowing the Sioux to secure the return of the land itself.  In so doing, she moved the conversation beyond the typical repatriation request and instead challenged some of the basing foundations of cultural property law itself.  She argued property should be amended to offer legal definitions which are more culture-specific.  Tatum also asked whether the Black Hills might fit within some of the definitions of cultural property as provided in the 1954 Hague Convention, and various UNESCO conventions, including the 1970 Convention.  She offered as one solution, the potential for multiple cultures to use and enjoy public lands.  This is the current model in many Federal land management systems. 

Tatum put cultural property scholarship into concrete terms, pointing out why the Sioux should be entitled to some remedy, and offering a pointed critique of the current flaws in cultural property law.  I'm very much looking forward to the final paper. 

Here's why.

More on the Getty Bronze

Jason Felch has an interesting story updating the long history of this bronze statue known either as the "Getty Bronze", the "Fano athelete", or the "Bronze statue of a victorious youth".  I wrote a very long summery of the dispute back in 2007.  The statue was found by fisherman in the Adriatic in 1964, was smuggled out of Italy, and was eventually purchased by the Getty in 1977.  As Felch rightly points out, this dispute does not fit neatly into the legal framework governing many antiquities dispute.  This bronze really was found by accident, and early Italian attempt to prosecute the fisherman were unsuccessful.

The bronze was discussed a great deal in the very public battle between Italy and the Getty over other looted objects.  There was a lack of direct evidence linking the Getty to any wrongdoing in the acquisition.  However at "Times reporter" has uncovered a letter and other documents which reveal there were serious questions regarding the statue:

1976 letter from Ashmole to Garrett referring to “the crime”

These documents should not come as any real surprise I don't think. And though they may not provide enough of a legal basis to secure the return of the bronze, but they will add to the growing public pressure which Italy may try to exert to secure the return of the statue.

1. Jason Felch, A twist in Getty Museum's Italian court saga - latimes.com, L.A. Times, January 14, 2010.